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Law of Criminal Defense - Archives for: July 2008

Archives for: July 2008


Permalink 12:05:24 am, by forhall, 21 words, 16854 views   English (US)
Categories: blog

VA may require malpractice insurance

Virgina proposes a rule requiring mandatory malpractice insurance, according to a Virginia State Bar press release. The proposed rule is here.


Permalink 07:43:17 am, by forhall, 237 words, 13806 views   English (US)
Categories: blog

No Strickland claim against standby counsel

When defendant waives counsel and has standby counsel, it appears that he cannot pursue an ineffectiveness claim against standby counsel. Even assuming that he can, he fails to satisfy Strickland here. Gripper v. United States, 2008 U.S. Dist. LEXIS 55964 (D. N.C. July 2, 2008):

Whether Petitioner can even assert an ineffective assistance of counsel claim against standby counsel is suspect since Petitioner waived his Sixth Amendment right to counsel and chose to represent himself during his criminal proceedings. See Faretta v. California, 422 U.S. 806, 836 (1975). When a defendant does so, the trial court, as it did for Petitioner here, may appoint standby counsel to assist the pro se defendant. Id. at 834 n. 46. However, there is "no constitutional right to hybrid representation," where the defendant "share[s] the duties of conducting [his] defense with a lawyer." United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997) (citing McKaskle v. Wiggins, 465 U.S. 168, 183 (1984)). Without a constitutional right to standby counsel, a defendant generally cannot prove standby counsel was ineffective. United States v. Cochrane, 985 F.2d 1027, 1029 n.1 (9th Cir. 1993) (rejecting ineffective assistance of standby counsel argument in this context without foreclosing argument in future); United States v. Windsor, 981 F.2d 943, 947 (7th Cir. 1992) ("court knows of no constitutional right to effective assistance of standby counsel"); United States v. Morrison, 153 F.3d 34, 55 (2d Cir. 1998) ("without a constitutional right to standby counsel, a defendant is not entitled to relief for ineffectiveness of standby counsel") (citing Schmidt, supra).


Permalink 11:36:04 pm, by forhall, 185 words, 12950 views   English (US)
Categories: blog

"Always assume that the client is recording you"

I've been saying this publicly for over 20 years:

§ 1:1, Rule 5: Say nothing or do nothing that you would be afraid to read about in the newspaper or in a transcript or hear in a courtroom some day.
. . .
b. Always assume that the client is recording you.

See Philadephia Daily News two days ago: 17 rounded up as part of 'Operation Delco Nostra', where a lawyer was recorded by a client and arrested for conspiracy to commit perjury:

When Monacello realized he and others were under investigation, he asked his attorney Gregory Quigley to meet with an associate who received a grand-jury subpoena at his law firm last Jan. 8.

Prepping him on how to lie, Quigley instructed the witness: "You have six options before you lie: yes, no, I don't know, I don't recall, [the] Fifth, lie." The attorney was referring to pleading the Fifth Amendment protection against self-incrimination.

"Once they give you immunity, then you can commit perjury," Quigley told the cooperating witness, who secretly recorded the conversation.

Quigley was charged with conspiracy to commit perjury, witness intimidation and obstruction of justice.

(Hat tip to Peter Goldberger)


Permalink 10:20:18 pm, by forhall, 48 words, 11961 views   English (US)
Categories: blog

Consent to search computer hard drive waived attorney-client privilege in contents

Defendant corporation's voluntary disclosure of a computer hard drive by a consent search which it permitted the government to copy was a waiver of attorney-client privilege in the hard drive. United States v. General Maritime Management (Portugal) L.D.A., 2008 U.S. Dist. LEXIS 55163 (S.D. Tex. July 21, 2008).


Permalink 02:51:36 pm, by forhall, 183 words, 18733 views   English (US)
Categories: blog

News: TX criminal defense lawyer resists subpoena for papers in his office, so judge issues a search warrant for the lawyer's office

In a move dangerous in both its Fourth and Sixth Amendment implications, a Collin County Texas district judge issued a search warrant for a criminal defense lawyer's office when the lawyer resisted a subpoena. The prosecutor apparently seeks to disqualify defense counsel from the case so he can testify as a witness. For a news article see Detectives Seize Documents From Murder-For-Hire Suspect's Attorney from Channel 5 in Dallas/Ft. Worth.

Blogs are Collin County Observer (with background), Grits for Breakfast, and Simple Justice.

This is almost Kafkaesque. Don't like the defense lawyer? Search his office and disqualify him to make him a witness to your case. Except that it isn't supposed to work that way in the United States. The law recognizes this predicament already; assuming the evidence gets in at all. Except maybe in Texas where anything is possible, operating under the bizarro world of the Texas Court of Criminal Appeals, a court so reactionary and procedural that SCOTUS reverses it as much or more as the purportedly liberal Ninth Circuit.

As the Talking Heads say, more on this as it develops.


Permalink 12:53:44 pm, by forhall, 101 words, 12368 views   English (US)
Categories: blog

Out of court comments about a judge protected speech?

Does the First Amendment protect a criminal defense lawyer's popular blog that called a trial judge an "evil, unfair witch" and "seemingly mentally ill"? Such is the travails of a Broward County criminal defense lawyer, discussed on's Attorney Argues His 'Witch' Comments About Judge Are Protected Speech. A previous article is here.

I've said far worse about judges, and in public, but not on a blog. Can I be disciplined too? What about truth as a defense?

On the blog today is the result of a poll that showed the abysmally low ratings of the judge targeted.


Permalink 09:41:07 am, by forhall, 20 words, 23197 views   English (US)
Categories: blog

Lying to the Court

New article: Fred Zacharias, Fitting Lying to the Court into the Central Moral Tradition of Lawyering, 58 Case West. L. Rev. ___ (2008).

Permalink 09:38:01 am, by forhall, 69 words, 11647 views   English (US)
Categories: blog

NJ: Failure to cite unpublished authority contrary to position is not a violation of candor

An attorney's failure to cite unpublished authority contrary to his position is not a violation of candor to the tribunal because it is not "controlling authority." The court was clearly troubled by this decision, however, but only to the extent is seems offended by the attorney not citing a case with no binding authority which it admits is the law. Brundage v. Estate of Carambio, A-56-07 (N.J. July 15, 2008).


Permalink 09:09:24 am, by forhall, 75 words, 12198 views   English (US)
Categories: blog

NLJ: Failure to supervise a PI leads to lawyer's indictment?

A lawyer in California was indicted with a PI for the PI's wiretapping in an investigation for the lawyer. See NLJ: Christensen Case a 'Wake-Up' Call for Lawyers on Use of Private Eyes:

Regardless of what happens in the criminal case against Terry Christensen, the Los Angeles lawyer accused of paying celebrity sleuth Anthony Pellicano to illegally wiretap some of his opponents, many lawyers are thinking twice about the way they work with private investigators.


Permalink 05:17:01 pm, by forhall, 506 words, 13562 views   English (US)
Categories: blog

PD having to argue own ineffectiveness was a conflict

Defendant moved to set aside his guilty plea for burglary which was to be concurrent to a federal sentence. After his plea, the USMS refused to take custody of the defendant, and that led to the motion to withdraw the plea. The motion of necessity involved a claim his public defender was ineffective. The public defender had a conflict of interest in arguing her own ineffectiveness. State v. Toney, 97,326 (Kan. App. July 11, 2008):

With regard to the first question, we are persuaded that Toney's public defender had divided loyalties at the hearing. Her purported ineffectiveness in investigating Toney's case prior to the plea was critical to her client's motion to withdraw plea. In order to faithfully and effectively represent Toney at the hearing, the public defender would be obligated to advocate and prove her own professional ineffectiveness. On the other hand, in order to defend herself against Toney's allegations of ineffectiveness, the public defender would be required to advocate against her client's legal position. This obviously placed the public defender in a tenuous position.

Similar divided loyalties were highlighted in Lopez v. Scully, 58 F.3d 38 (2d Cir. 1995), wherein the defendant sought to withdraw his guilty plea because of coercion allegedly exerted by his attorney. The Second Circuit observed, "To argue in favor of his client's motion would require admitting serious ethical violations and possibly subject [counsel] to liability for malpractice; on the other hand, '[a]ny contention by counsel that defendant's allegations were not true would ... contradict his client.'" 58 F.3d at 41.

In the present case, Toney's public defender candidly acknowledged her conflict to the district court. The prosecutor concurred with this assessment on the additional ground that both the chief public defender and the public defender would be necessary witnesses in support of Toney's claim. This situation could implicate ethical considerations. See Kansas Rule of Professional Conduct 3.7 (2007 Kan. Ct. R. Annot. 523).

We are persuaded that the subject matter of Toney's legal argument and his public defender's in-court acknowledgment of divided loyalties were sufficient to establish a conflict of interest at the time of the hearing on the motion to withdraw plea.

. . .

Some jurisdictions have concluded as a general matter that "[c]ounsel cannot be expected to argue his or her own ineffectiveness." State v. Ballew, 89 Ohio St. 3d 204, 205, 729 N.E.2d 753 (2000); see United States v. Del Muro, 87 F.3d 1078, 1080 (9th Cir. 1996); Sullivan v. United States, 721 A.2d 936, 937 (D.C. 1998); State v. Molina, 271 Neb. 488, 535, 713 N.W.2d 412 (2006). The Illinois Court of Appeals has held, for example, that "[a] per se conflict of interest arises when attorneys argue motions in which they allege their own ineffectiveness." People v. Keener, 275 Ill. App. 3d 1, 5, 655 N.E.2d 294 (1995).

"Kansas has not recognized a per se conflict of interest with regard to the attorney-client relationship." State v. Robertson, 30 Kan. App. 2d 639, 641, 44 P.3d 1283 (2002).

The facts of this case do not require us to decide–and we decline to consider–whether defense counsel may properly advocate his or her own ineffectiveness and thereby avoid a claim that divided loyalties adversely affected counsel's performance.


Permalink 09:06:09 pm, by forhall, 143 words, 11673 views   English (US)
Categories: blog

Alleged overagressive handshake led to assault charge against defense lawyer; charge dropped

Allegedly overagressive handshake with a federal prosecutor led to a defense lawyer being charged with assaulting a federal officer. The reports that the government dropped the case. The handshake occurred after a hearing involving the defense lawyer's husband's federal probation.

Marshal Robert Kremenik was in the courtroom when Brewer Rentas insisted on shaking hands with Keene. The prosecutor refused at first, he said, but Brewer Rentas persisted, following Keene.

"Brewer forcefully grabbed onto Keene's right hand and squeezed it, pulling Keene toward her, forcing Keene off balance," Kremenik wrote in his report. "With Keene in hand, Brewer made an upward, then a quick downward motion and pulled Keene toward the ground moving her forward, almost causing Keene to fall to the ground."

Gilberto Pay, a court security officer, told Kremenik that Brewer Rentas "almost pulled her arm out of the socket."


Permalink 04:10:44 pm, by forhall, 52 words, 25708 views   English (US)
Categories: blog

Denver Post: "Faux lawyer confesses he's a sham"

Update: The Denver Post reports today that Faux lawyer confesses he's a sham, stating that Howard O. Kieffer has admitted in a letter to the judge that he is not licensed to practice law.

See the prior post of June 22 here: Non-lawyer holding self out as lawyer?

(Hat tip to Lisa Wayne.)


Permalink 02:36:42 pm, by forhall, 55 words, 19872 views   English (US)
Categories: blog

OH: Indefinite suspension for abandoning clients and failing to refund unearned fees

An criminal defense lawyer was suspended indefinitely by the Ohio Supreme Court today for abandoning clients and failing to refund unearned fees or keep unearned fees in an identifiable trust account. Cincinnati Bar Assn. v. Lawson, 2008-Ohio-3340 (Ohio July 9, 2008). The respondent's good character and drug addiction mitigated punishment down from presumptive disbarment for similar offenders.

Permalink 11:15:05 am, by forhall, 68 words, 29640 views   English (US)
Categories: blog

Client abducts lawyer at knifepoint during temporary release from jail

A lawyer arranged for temporary release for a client from jail on a DV case to go to a social security disability hearing. While driving back to the jail, the client pulled a knife on the lawyer, bound his hands with his belt, and abducted him. Video here. In the video, we can see a motion to be relieved in the criminal case. See also the Herald Bulletin.

Permalink 06:38:19 am, by forhall, 57 words, 19266 views   English (US)
Categories: blog

NY: "Premium fee" unenforceable

NY's 1st Dept. holds an oral agreement for a $150,000 "premium fee" at the conclusion of the case, only contemplated in the fee agreement to the extent that one would be discussed at the close of the case, is unenforceable. Sheresky Aronson & Mayefsky, LLP v. Whitmore, 2008 NY Slip Op 06175 (1st Dept. July 8, 2008) (from the Legal Professsion Blog).


Permalink 09:22:56 am, by forhall, 256 words, 25444 views   English (US)
Categories: blog

PDs resign murder case after 4 years in pay dispute

Two Indiana Public Defenders resigned from a murder case, with the assent of the trial judge, for pay issues. See Herald Bulletin:

Nearly four years after prosecutors brought murder charges against Rex David Delph, his longtime public defenders have withdrawn from the case, saying the county is unwilling to pay about $95,000 for their services and experts to testify at trial and further review evidence. It’s the latest twist in the years-long legal saga, and possibly jeopardizes Delph’s chances of a fair trial.

Attorneys Zaki Ali and Joseph Cleary filed a joint motion to withdraw from the case Thursday. Madison Circuit Court Judge Fredrick Spencer asked the two to withdraw in late June if they couldn’t negotiate with the Madison County Public Defender Board to lower the mounting costs associated with Delph’s defense.

. . .

The Public Defender Board — attorneys Max Howard, Ron Fowler and Ted Smith — refused June 23 to pay the nearly $95,000 estimated in further costs to defend Delph at trial. About $150,000 has already been spent over the last four years. In a letter to Spencer, Ali and Cleary said any negotiations are impossible because of the costs associated with anticipated expert testimony and their attorneys fees.

“With all due respect, requesting that we negotiate something with the Public Defender Board is essentially a request that we compromise Mr. Delph’s right to effective assistance of counsel,” the attorneys write. “I think you would agree our two week estimate for trial is reasonable. We do not see any way to negotiate as to that.

Permalink 08:50:10 am, by forhall, 188 words, 24350 views   English (US)
Categories: blog

Taking over a criminal case from another defense lawyer, Miami-style

In the Southern District of Florida blog is this post about how Miami lawyers handle withdrawal and assuming defense of a criminal case:

Bill Barzee was headed into the FDC yesterday when he ran into Benson Weintraub on the way out. They ran into each other in front of the tower building. Apparently words were exchanged about one of Bill's clients. Benson told Bill that he was taking over the case. He told Bill to go back to his office and write him a check. He told Bill that there was no need to go into the jail. This led to a further exchange of words...

Benson then attacked Bill, punching him twice in the face. Bill was carrying his briefcase in one hand and his jacket in the other. Bill then tried to push and kick Benson away. He put Benson in a headlock and subdued him until the Marshals came and broke it up.

Benson told others that he cold-cocked Bill because of Bill's comments."

This is only one version of the matter. Read the comments in the blog for more.

(Hat tip to Peter Goldberger.)


Permalink 03:41:46 pm, by forhall, 27 words, 19828 views   English (US)
Categories: blog

ADA disbarred for fixing cases

The Legal Profession Blog reports today that an assistant misdemeanor prosecutor was disbarred for fixing cases. No word on the defense lawyer mentioned who was doing it.

Permalink 01:49:16 pm, by forhall, 174 words, 20622 views   English (US)
Categories: blog

Chicago Sun-Times: 430 defendants incarcerated two years or more awaiting trial

A story in the Chicago Sun-Times and a related paper mentions that a murder defendant has been awaiting trial in Cook County for six years, 36 more than five years, 430 more than two years.

Cases get delayed for various reasons. Critics say both prosecutors and defense attorneys game the system, with prosecutors wanting time to find witnesses, and defense attorneys hoping evidence will fade. Some county judges are reputedly slower than others at moving cases along. The inmates waiting the longest tend to face the most serious charges.

One way to speed up cases is to add judges. The Chicago Appleseed Fund for Justice last year found that Cook County criminal courts should have 65 judges, but have just 40.

That number's about to go to 45. "The introduction of five additional judges will go a long way to alleviate the problems of old cases," said Criminal Court Presiding Judge Paul Biebel.

Also needed are more prosecutors and defense attorneys, Fasano said. Judges need ways to enforce case timelines, even if both parties agree to delays, said Fasano.


Permalink 07:33:09 pm, by forhall, 353 words, 25284 views   English (US)
Categories: blog

Plagiarist named to D.D.C. by Bush

On September 9th, there is this post about plagiarizing an article being an ethical violation.

Yesterday, we see in the NY Times that a plagiarist has been nominated by President Bush to the D.C. District Court. Ironically, he worked on the toughest judicial nominees for the White House. He blames it on negligent work habits.

The Times article never uses the P-word, instead using "copying." How genteel. If it walks like a duck .... Are we afraid of a potential judicial nominee who might get confirmed?

Prof. Deborah Rhode questions the bona fides of someone so accused to be a judge but it doesn't bother Sen. Arlen Specter, so sayeth the Times:

Deborah L. Rhode, an authority on legal ethics at Stanford, said the retraction by the Supreme Court Economic Review was “extremely unusual” and amounted to “a textbook case of conduct that casts doubt on someone’s fitness for judicial office.”

“That’s a serious form of misconduct in an academic career,” Ms. Rhode said. “I would think it would be viewed equally seriously in a judicial career. In my judgment, that would be disqualifying.”

In an interview, Senator Arlen Specter, the Pennsylvania Republican who was chairman of the Judiciary Committee until last year, said he had known for some time about the questions concerning Mr. O’Neill’s scholarship.

“I heard him out on it and put it in the balance of everything else I knew about him,” Mr. Specter said. “I believe he is an excellent prospect for the district court.”

This is the Westlaw post:

15 Sup. Ct. Econ. Rev. 1

Supreme Court Economic Review, 2007


The Editors of the Supreme Court Economic Review

Copyright © 2007 by The University of Chicago; The Editors of the Supreme Court Economic Review

Substantial portions of Irrationality and the Criminal Sanction, 12 SCER 139 (2004), by Michael E. O'Neill, were appropriated without attribution from Anne C. Dailey's book review, Striving for Rationality, 86 Virginia Law Review 349 (2000). Professor O'Neill's article is therefore withdrawn.

The article at 12 Sup. Ct. Econ. Rev. 139 has been purged from Westlaw.

Update Monday: today.


Permalink 12:30:29 am, by forhall, 104 words, 34988 views   English (US)
Categories: blog

"America was neither founded, nor freed, by the well-behaved."

—Semmes Luckett, a Clarksdale, Mississippi lawyer (who I am informed represented many Mississippi school districts in resisting desegregation, which is borne out by looking at his cases on Westlaw or Lexis)

Today, read Thomas Paine's Common Sense, February 14, 1776, and then the Declaration of Independence.

This is my July 4th ritual.

Correction and Update: In a discussion Feb. 24, 2010 with Gerald Goldstein, I discovered that this quote is from Semmes Luckett the younger, the son of the lawyer mentioned above. This Semmes Luckett was a 1959 college roommate and longtime friend of Hunter S. Thompson. See Conversations with Hunter S. Thompson (Beef Torrey and Kevin Simonson, eds.) 77-78 (2008).

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    "A lawyer shall represent a client zealously within the bounds of the law."
      —§ 1:1, Rule 3(a) (not "should" from CPR Canon 7)

    "I simply want to tell you that there are some men in this world who were born to do our unpleasant jobs for us. Your father is one of them."
      —Harper Lee, To Kill a Mockingbird, ch. 22, p. 197 (1960)

    "The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free."
      —Herring v. New York, 422 U.S. 853, 862 (1975)

    "The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted ... the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated."
      —United States v. Cronic, 466 U.S. 648, 655-56 (1984)

    "The only real lawyers are trial lawyers, and trial lawyers try cases to juries."
      —Clarence Darrow

    "America was neither founded, nor freed, by the well-behaved."
      —Semmes Luckett the younger

    "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law."
      —Washington v. Texas, 388 U.S. 14, 19 (1967)

    "[T]he Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'"
      —Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).

    "[O]ur so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. ... [A]s part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth."
      —Justice White concurring and dissenting in U.S. v. Wade, 388 U.S. 218, 256-58 (1967)

    We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.
      —Cynthia Roseberry


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